Opinion
A148362
12-15-2016
In re V.M. et al., Persons Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. L.B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. SJ15024632 & SJ15024633)
L.B. (Mother) challenges the juvenile court's order sustaining a supplemental petition against her and removing her two sons, V.M. (born in July 2004) and R.M. (born May 2005), from her custody. (Welf. & Inst. Code, § 387.) She contends the allegations in the section 387 supplemental petition failed to establish that placement of the children in foster care was required. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Initial Detention
The children were initially detained on March 31, 2015, after their father, N.M., left the two boys in the care of his landlord on March 27, 2015, and failed to return. The police were contacted and had failed to locate either parent.
Mother and N.M. were never married. They had shared physical and legal custody of the children. N.M. is not a party to this appeal.
Section 300 Petition
On April 2, 2015, the Alameda County Social Services Agency (Agency) filed a dependency petition. The Agency asserted the children came within the jurisdiction of the juvenile court pursuant to section 300, subdivisions (b) and (g). The petition alleged the children had suffered, or were in substantial risk of suffering, serious physical harm or illness due to their parents' failure to supervise or adequately protect them. The petition also alleged the parents were unable to provide regular care due to a significant history of substance abuse, including methamphetamine use, and asserted the boys had been left without any provision for support.
On April 3, 2015, the juvenile court found the children were persons described by section 300 and concluded removal was necessary. The court ordered the children detained.
Jurisdiction
The Agency's jurisdiction report filed on April 21, 2015, advised that the children were doing well in their foster home placement. Both boys were attending school regularly and the foster parents stated that the children were well-behaved and great listeners. Mother was reportedly preparing to reside with the boys in the maternal grandparents' home. N.M. had ceased communicating with the social worker.
On May 26, 2015, the Agency filed a disposition report recommending that the children be released to Mother with family maintenance services. The Agency explained that Mother had moved from San Joaquin County to Alameda County in June 2014, and had experienced unstable housing from February 2015 to May 2015. During this period the boys went to reside with N.M. Mother stated that the children last had physical examinations in November 2013. She indicated she was having difficulty in transferring her Medi-Cal from San Joaquin County. Mother and the maternal grandparents had reportedly worked out a safety plan with the Agency for the care of the children.
At the disposition hearing, also held on May 26, 2015, Mother submitted to the petition's allegations. The juvenile court declared the minors to be dependents of the court and ordered them placed with Mother, with the Agency directed to provide family maintenance services.
Status Review Report
In the status review report filed October 13, 2015, the Agency reported that the family had recently become homeless and had been living out of their car. By the time the report was prepared, however, the family had moved into a camper shell located in the back yard of a home that belonged to a friend of Mother. The family had been kicked out of the maternal grandparents' home after the maternal grandfather suspected Mother had taken some of his belongings. Mother reported she had been diagnosed with bipolar disorder and depression in November 2014, and was not taking her prescribed medication. She admitted she has a high amount of anxiety, which interfered with her ability to get to appointments and to transport the boys to and from school in a timely fashion.
The social worker indicated that school officials were highly concerned about R.M., who, although missing significant portions of class time, was still completing work at grade level. His teachers believed he had great potential if he were to be supported and given the chance to succeed. V.M. was showing signs of depression at school. He often arrived late and instead of trying to catch up, he would put his head down on his desk and sleep. Both boys were often left waiting after school for Mother to pick them up, and would be found crying and asking over and over, "Is she coming?" and "What are we going to do?" R.M. had expressed feelings of abandonment and constant worry that Mother would fail to show up one day. Mother had failed to obtain individual therapy, which had been a requirement of her case plan.
Section 387 Petition
On November 6, 2015, the children were detained again.
On November 9, 2015, the Agency filed a section 387 supplemental petition. The Agency reported that it had received two child welfare referrals. Mother had dropped off the children late to school on multiple occasions. Additionally, she either failed to pick them up from school or picked them up late. On one occasion in September 2015, the children had to wait in the school office after it closed at 4:00 p.m. due to lack of contact with Mother. They were seen later that evening around 6:00 p.m., crying and upset because Mother still had not picked them up. When the family had been sleeping in Mother's car, the children were often tired, hungry, and unable to focus on school. Mother had failed to follow through with her case plan with respect to substance abuse testing, obtaining a psychological evaluation, and engaging in individual therapy. Neither parent was able to provide proper care and supervision for the children. The Agency recommended the children be placed in foster care.
On November 10, 2015, the juvenile court found the amended allegations to be true and found that removal was necessary. The court scheduled a contested detention hearing for November 12, 2015.
Detention Report
The Agency's detention report stated that at one point the family had been living with Mother's friend in Tracy. During this period, the boys often arrived at school at 10:30 a.m. or 11:30 a.m. V.M. reported that he had not been coming to school on time because he could not get Mother to wake up. V.M. stated that he would wake up at 7:00 a.m. and attempt to wake her up so that he could get to school in time to have breakfast, but she would tell him to " 'go back to sleep.' " One week the boys did not come to school at all because Mother did not have money for gas. At other times they would call her to come get them after school and sometimes it would take two hours for her to come. V.M. said he was " 'worried every day after school if she's gonna come or not.' " He also reported being physically abused by Mother, including being hit in the face, pulled on his arm, and dragged off a couch and thrown on the floor. Mother would also scream at the top of her lungs at the boys at least once a week.
The family sometimes had no money and no food. V.M. had seen Mother with bottles of vodka, but had not seen any drugs. R.M reported that Mother " 'drinks alcohol because it helps with her headaches.' " He said she had a bottle containing alcohol that was about 12 inches high and about three to four inches wide. He knew Mother drank every day because he saw the bottle full and then the next day a quarter of it would be gone. The social worker had visited the family when they were living in the camper shell at Mother's other friend's house. Electrical cables ran from the home to the camper. Mother indicated that the boys were allowed to use the bathroom in the house but generally slept in the camper.
Mother stated that the boys were late for school because they would argue and because R.M. would refuse to get up. She was "very frustrated" because the children always wanted to stay in bed or begged her to call the school and say they were staying home sick. She denied hitting the boys and said she was not using drugs or alcohol. She admitted she had been prescribed mood-stabilizing medication but refused to take it because she was afraid of how it would make her feel.
A team decision meeting (TDM) had been held on October 6, 2015, during which a safety plan was created. Mother was required to have the bathroom in the home "cleaned and usable by 10/13/2015." She was also to have scheduled appointments for psychological evaluations for her and for V.M. by the following day. She was directed to pick up the boys right after school and to complete random drug testing. During the meeting both boys expressed in front of Mother that they wanted to live with their father.
On November 2, 2015, the social worker learned that the boys had been living with their maternal grandparents during the week for the past two weeks. Mother stated that she was " 'overwhelmed.' " She did not attend a second TDM meeting despite having sent several text messages that she was on her way. Also, she had failed to participate in random drug testing. In the Agency's view, the children faced imminent danger based on Mother's failure to participate in case plan services and the lack of a stable home, along with their missing school and often being tired, hungry and unable to focus when they were at school. Detention was necessary as there was no reasonable way to protect them without removal.
After a continuance, the contested detention hearing was held on November 13, 2015. Neither parent appeared. The juvenile court denied a request for an additional continuance. After the social worker testified, the matter was argued and submitted. The court found the Agency had made reasonable efforts to prevent or eliminate the need for removal of the children from the home and ordered the children detained.
Jurisdiction/Disposition Reports
On December 8, 2015, the Agency filed a jurisdiction/disposition report. The Agency recommended that the juvenile court sustain the section 387 petition and that the children remain in foster care. Reportedly, N.M. had been contacted on three occasions regarding substance abuse testing but had never responded. He also did not respond to efforts to arrange for supervised visitation. Mother had arrived 30 minutes late for her first supervised visit. An attempt was made to schedule an additional visit the week of Thanksgiving, but Mother failed to promptly respond.
In an addendum report filed December 22, 2015, the Agency noted Mother had missed a scheduled visitation on December 9, 2015. She later showed up unannounced at the boys' foster home. She had told the social worker that she wanted the children to live with the maternal grandparents. She was saving money and looking for housing but had not decided where she wanted to live. She also reported that the boys had never been to the dentist. The Agency noted that when Mother did visit she was appropriate and the boys enjoyed seeing her. The children stated that they would rather be placed with their maternal grandparents than in their foster care home.
The Agency filed a second addendum report on January 15, 2016. The boys were doing well in their foster home placement. The maternal grandparents were assessed and approved for placement, but they declined to accept placement. Another TDM had been scheduled to discuss placement, but it was cancelled after Mother failed to show up. V.M.'s therapist reported that the boy was initially very distressed, but since he had been placed at the foster home he was alert, not missing meals, and not missing school.
Adjudication
The contested jurisdiction/disposition hearing on the section 387 petition was held on January 15, 2016 and February 22, 2016. Mother and the children's social worker testified.
Mother testified that she had been living in the home of the boys' godfather's father since October 2015, and stated that she and the boys could stay there indefinitely. This is the same home described in the Agency's reports as the one having the camper shell in the backyard. She was presently living in the camper shell and said that the children could live there with her if they were returned to her. She described the camper shell as a "one-room studio." It gets electricity from the main home through the extension cord but does not have running water. She also testified that she had been approved for subsidized housing but would have to wait until a unit became available.
At the February 22, 2016 hearing, Mother updated the court on her housing, stating that she had moved into the main house and out of the camper shell. She did not have a lease or any agreement in writing allowing her to stay in the home. She said she was sleeping on a futon in the living room.
At the January 15, 2016 hearing, Mother reported she was working as a driver for Uber and was earning between $1,500 and $1,800 per month. She was currently seeing a therapist. However, by the February hearing date she admitted she had not attended therapy for a few weeks, allegedly due to financial issues. She testified that the boys had been late to school while in her care due to their unstable housing situation when they were living in her car. She explained she had to rely on her cell phone as an alarm clock and when her cell phone battery died the family woke up late. She said if the boys were returned to her she would ensure that they would arrive at school on time and attend their doctor's appointments. She admitted she knew V.M. had been sleeping during class and that she did not do anything about it.
Mother also admitted that although she had been asked to participate in substance abuse testing she had not done so. She said she saw no reason for it. At the February hearing, she stated that she went for a drug test on January 21, 2016, at a facility in Livermore. She did not go to the facility the Agency had referred her to because she had to work, although she admitted her work is very flexible. She acknowledged she did not attend the TDM scheduled for November 3, 2015, just prior to the Agency removing the children. She felt she was being forced to attend the meeting and did not believe she was required to be there. She also admitted it had been difficult for her to take care of the boys due to her anxiety. However, she did not believe she had mental health issues, believing her only issue was housing.
The social worker testified that Mother had missed another visitation on February 12, 2016. Although Mother had submitted some drug testing results, the testing did not satisfy her case plan responsibilities. Specifically, she had tested at a facility that is not contracted with the Agency. The social worker had no knowledge regarding the facility's use of supervision while the sample is being collected or its policies to guard against falsified samples. Additionally, Mother had failed to test for alcohol.
Mother had not been consistently engaging in individual therapy. Her previous therapist reported that he could no longer work with her because she had missed three appointments. The social worker disputed Mother's account that the sessions had been cancelled for financial reasons. Also, the social worker had never met the owner of the home where Mother was currently residing and had not inspected the home because Mother cancelled two inspection appointments at the last minute. The social worker continued to recommend out-of-home placement for the children. She was concerned about Mother's level of anxiety and her ability to care for the children on a daily basis.
On March 16, 2016, the juvenile court filed its decision and order. The court found the allegations of the supplemental petition to be true and concluded that returning the children to Mother would place the children in danger because of her "neglectful conduct." While Mother attributed all of the family's problems to having been homeless, the court concluded "[t]he evidence demonstrates just the opposite." In highlighting Mother's continuing pattern of instability, the court noted she was inconsistent with visitation and had missed a recent visitation, which she blamed on the person transporting the children. The court noticed that blaming other people was "a consistent theme proffered by [Mother] throughout the reports in this case." She had also missed important home inspections and had failed to comply with the Agency's substance abuse testing requirements. Additionally, her therapy was terminated because she was constantly tardy and had missed appointments. The court adopted the Agency's recommendations.
On May 16, 2016, Mother filed an appeal from the March 16, 2016 order.
DISCUSSION
Mother argues that the juvenile court erred when it sustained the supplemental petition and removed the children from her custody. We are not persuaded. I. Standard of Review and Relevant Law
A supplemental petition under section 387 is used to change a dependent child's placement from the physical custody of a parent to a more restrictive placement. (§ 387; Cal. Rules of Court, rule 5.560(c); In re T.W. (2013) 214 Cal.App.4th 1154, 1161.) At the jurisdictional stage, the juvenile court determines whether the factual allegations of the petition are true and whether the previous disposition has been ineffective in protecting the child. (§ 387, subd. (b); rule 5.565(e)(1); In re A.O. (2010) 185 Cal.App.4th 103, 110.) If the court makes these findings, it then determines disposition, i.e., whether removing the child from the parent's custody is appropriate. (Rule 5.565(e)(2); In re T.W., at p. 1161.)
All rule references are to the California Rules of Court.
Appellate courts have held that to remove a child from a parent's custody pursuant to a section 387 petition, the juvenile court must apply the standards in section 361, subdivision (c)(1), and find, by clear and convincing evidence, that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody. . . ." (See In re T.W., supra, 214 Cal.App.4th at p. 1163; In re Javier G. (2006) 137 Cal.App.4th 453, 462; but see In re A.O., supra, 185 Cal.App.4th at pp. 111-112 [questioning whether clear and convincing evidence standard applies to a second removal where child has previously been removed from, and then returned to, parent's custody].)
We review the juvenile court's jurisdictional and dispositional findings for substantial evidence. (In re T.W., supra, 214 Cal.App.4th at p. 1161.) Evidence is substantial if it is " ' "reasonable, credible, and of solid value"; such that a reasonable trier of fact could make such findings.' " (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) Mother, as the party challenging the court's findings and orders, bears the burden to show there is no evidence of a sufficiently substantial nature. (In re Maria R. (2010) 185 Cal.App.4th 48, 57.) II. Removal Was Not Based Solely On Mother's Financial Circumstances
Mother relies on In re G.S.R. (2008) 159 Cal.App.4th 1202, and In re P.C. (2008) 165 Cal.App.4th 98 in arguing that the juvenile court had insufficient cause to divest her of custody. These cases are distinguishable.
In In re G.S.R., two boys were taken into custody after their mother was arrested. A few months later, the boys' father appeared in the proceedings. (In re G.S.R., supra, 159 Cal.App.4th at pp. 1205-1206.) The father had a history of alcohol abuse and occasional drug use, and had committed two acts of domestic violence. He also had, however, completed a drug program and a domestic violence program. (Id. at p. 1206.) At the disposition hearing, he was declared a nonoffending parent and granted reunification services, but was unable to gain custody of the boys because he rented an apartment that was inappropriate for children. (Id. at p. 1207.) The father saw the boys nearly every day and was employed. Two years later, at the permanency planning hearing, the father was still employed. He saw his sons regularly but still had not secured appropriate housing. The record did not contain any reason for the father's inability to obtain suitable housing other than lack of available funds. The court terminated his parental rights. (Id. at pp. 1209-1210.)
On appeal, the father argued that his due process rights had been violated because he was a nonoffending parent who had never been found to be unfit. (In re G.S.R., supra, 159 Cal.App.4th at p. 1210.) The appellate court agreed that the juvenile court had never made a finding of parental fitness as to the children's father; rather, the court's findings concerned the children's mother only. Further, the court found that all of the father's issues with domestic violence and substance abuse had been resolved prior to the filing of the original dependency petition, concluding the only matter unresolved at the dispositional stage was the father's inability to afford appropriate housing. (Id. at pp. 1211-1212.) The court observed: "The record strongly suggests the only reason [the father] did not obtain custody of the boys was his inability to obtain suitable housing for financial reasons. But poverty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction. . . . [I]ndigency, by itself, does not make one an unfit parent and 'judges [and] social workers . . . have an obligation to guard against the influence of class and life style biases.' " (Id. at p. 1212, fn. omitted.) The court concluded: "Under these circumstances, we determine [the father's] due process rights were denied by DCFS' failure to demonstrate sufficient detriment and the juvenile court's failure to find a legitimate basis for deeming him unfit." (Id. at p. 1215.)
In In re P. C., the mother was found to have physically abused her children. At the time the petition was filed by the social services agency, the mother had been homeless for approximately three weeks. (In re P.C., supra, 165 Cal.App.4th at p. 100.) The children were placed with a prospective adoptive family and the mother was given two hours per week of monitored visitation. (Id. at p. 102.) At the time of the 18-month review hearing, the social services agency acknowledged that the only thing preventing the children from being returned to the mother's care was her failure to obtain suitable housing. She had not secured approved housing because she was living in a group home where a resident did not want to undergo live-scan testing to determine whether that resident had a criminal record. After a contested section 366.26 hearing, the juvenile court terminated the mother's parental rights. (Id. at pp. 101-102.)
The mother appealed and the appellate court framed the issues as: "May parental rights be terminated when the only current detriment to returning the children to mother's care and custody is her inability to obtain housing acceptable to [the social services agency]?" (In re P.C., supra, 165 Cal.App.4th at p. 103.) The court reversed the order, finding that the mother had corrected all of the problems that had led to the juvenile court's assertion of jurisdiction over her children. It noted that the mother's failure to find suitable housing was not due to any fault on her part. Citing In re G.S.R., the court concluded the mother's inability to find appropriate housing was inextricably tied to her poverty, and the social services agency's failure to find alternative solutions could not serve as a basis for terminating her parental rights. (In re P.C., at pp. 103-107.)
The cases Mother relies on do not assist her. Unlike the father in In re G.S.R., Mother was not a nonoffending parent who had never been found to be unfit. And, unlike the mother in In re P.C., Mother's difficulty in securing appropriate housing was not inextricably tied to poverty. In fact, at the time of the hearing Mother reported that she was employed. Nor was she chronically homeless, though it is true she had some difficulty in securing stable living arrangements. While Mother argues that the family's periods of homelessness constituted insufficient cause to divest her of custody under section 387, the evidence demonstrates that she failed to follow through with getting her existing housing approved by repeatedly cancelling housing inspections.
Essentially, the juvenile court did not sustain the section 387 petition on the basis of Mother's poverty or homelessness. The court's concerns here simply were not driven by "the fact that [she] was forced to live in a car with her children for a brief period of time and the children had some sleeplessness as a result . . . ." That the children were hungry, missing significant amounts of school, and left unsupervised after school cannot be solely attributed to Mother's less-than-ideal housing situation. We also disagree that the boys' problems were necessarily "the inevitable consequence of living in a car." Nor was the fact that the family was living in a camper shell a determinative factor leading to removal. Rather, substantial evidence supports the conclusion that Mother was generally unable to care for, supervise, and protect her children.
There also was substantial evidence to support the order removing the boys from Mother's custody. The juvenile court found by clear and convincing evidence that there was a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the children if they were returned to Mother's custody. It also found there were no reasonable means by which they could be protected without removing them from her physical custody. These are the findings required by law (§ 361, subd. (c)(1); In re Jasmine G. (2000) 82 Cal.App.4th 282, 288), and they are justified by sufficient evidence. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881 [clear and convincing standard " 'disappears' " on appeal and court assesses whether there is substantial evidence to support the order or judgment].)
Mother argues that each of the problems identified in the supplemental petition are insufficient to assert jurisdiction. In her opening brief she parses them out one by one, citing to cases that merely establish that an allegation of a specific neglectful behavior, without more, will not support removal. For example, she cites to In re Janet T. (2001) 93 Cal.App.4th 377, for the proposition that "[t]ardiness to school, without proof that school tardiness produces serious physical harm or illness, is insufficient for jurisdiction." The juvenile court's finding of substantial harm, however, was not premised on any single factor, but instead was based on Mother's overall failure to protect and care for her children.
The juvenile court correctly observed that even after Mother was alerted as to how important it was to ensure the children arrived at school on time and were picked up on time, she continued to repeatedly drop them off late and pick them up late. This caused the boys to miss a significant amount of classroom time. Further, they were often left unsupervised at the end of the day, which caused them much emotional distress. In addition to a history of unstable housing, including having to sleep in Mother's car, the children were often tired, hungry, and unable to focus on school. Their medical and mental health needs were also going unmet.
More significantly, Mother had failed to follow through with any of her case plan requirements. She also had admitted a previous history of mental health issues, and even attributed some of the boys' instability to her anxiety and being "overwhelmed." The social worker testified that Mother was inconsistent in attending therapy to the point that her first therapist had to terminate her. Thus, she was failing to address even her own acknowledged emotional issues. She had also recently missed scheduled visitation with the boys.
Mother relies on In re G.S.R. for the proposition that "the Agency may not bootstrap the fact that [she] was too poor to afford housing, which would not have served as a legitimate ground for removing the boys in the first place, to support findings of detriment, all of which flow directly from the circumstances of mother's poverty." She faults the Agency for not assisting her in finding housing and instead removing the boys and "pay[ing] foster families to house the children." In doing so, Mother fails to acknowledge that she testified she had obtained suitable housing at the home of the boys' godfather's father. In spite of this, again, she elected not to cooperate with the Agency's efforts to inspect the housing to insure that it was appropriate for the children.
Thus, it is not homelessness or poverty, but rather Mother's failure to comply with the terms of her case plan, that is at the root of the juvenile court's ruling. Importantly, her issues were not limited to housing instability. She also had a pattern of failing to support the boys' educational needs, and repeatedly demonstrated that she was unable or unwilling to provide them with needed care and proper supervision. That her neglectful behavior had already caused the boys emotional harm, and also had created the potential for placing them in serious physical danger, is undisputable.
The Agency undertook reasonable efforts to avoid removal. As the Agency notes, Mother was referred for weekly individual therapy and a psychological evaluation. Prior to filing the supplemental petition, the Agency worked with her to create a safety plan so that the boys could remain in her custody. Despite being reminded of the second TDM, she failed to show up and did not answer the social worker's subsequent phone calls. There is thus substantial evidence that the Agency gave her several opportunities and attempted to support her to keep the children in the home, yet she was unwilling or unable to take advantage of the help that she was offered.
Contrary to Mother's arguments in her reply brief, we do not agree that the Agency was required to set up after-school care to address the issue of supervision after school. Nor was it required to arrange for meals, bus transportation, or provide temporary housing. As we have recognized, "reasonable efforts, like reasonable services, need only be reasonable under the circumstances, not perfect." (In re H.E. (2008) 169 Cal.App.4th 710, 725.) We disagree with the premise that social service agencies are required to act as surrogate parents after dependency proceedings are initiated. Instead, such agencies exist to provide services to parents in order to give these parents the resources and support they need to enable them to care for their children themselves. --------
The juvenile court, in sustaining the section 387 petition, had before it clear and convincing evidence that there was a substantial danger to the boys if they remained with Mother, due to her overall inability to provide appropriate care for her children. There was substantial evidence before the court that Mother continued to fail to provide educational and housing stability, and was failing to meet the children's basic needs under the court's prior dispositional order. The order that had placed the boys in Mother's home was therefore ineffective in protecting them, and the court properly sustained the Agency's section 387 petition.
DISPOSITION
The March 16, 2016 order is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.